Send by registered post (not via certified email) if the contract so stipulates

The Pec is not the same as to a registered letterin paper form when the contracting parties have agreed, in the contract, that declarations relating to the contract itself must be made by registered letter: this is the principle established in the Supreme Court’s order no. 26272 of 5 October 2026, pursuant to which it was ruled that sending a certified email (PEC) is not sufficient to terminate a contract where the parties have stipulated that the declaration of intent to invoke the express termination clause must be communicated by registered letter with acknowledgement of receipt.

This decision is unprecedented, as in the Court of Cassation cases 11808/2022 and 14185/2022 it was indeed held that a certified email (PEC) is equivalent to a registered letter, but those were cases in which there was no agreement on the agreed form and method of communication.

The dispute brought before the Court of Cassation concerned a sale and leaseback agreement, under which the company owning a property had sold it to a leasing company whilst retaining its use as the lessee, only to subsequently cease payment of the lease instalments. The leasing company had declared the termination of the contract via certified email (PEC), invoking the express termination clause. Both the Court of Naples and the Court of Appeal had deemed the declaration sent via certified email (PEC) – rather than by registered post – to be valid.

In proceedings on points of law, however, a distinction is drawn between the equivalence of the means of communication and compliance with the form chosen by the parties: it is true that Article 48 of the Digital Administration Code (the CAD, Legislative Decree 82/2005) establishes a general equivalence between certified email (PEC) and registered post, but this equivalence presupposes that the parties have not agreed on a specific method of communication.

In the case under consideration, the lease agreement expressly provided that the notice of termination was to be given ‘by registered letter with acknowledgement of receipt’. The Court of Cassation observes that this is a contractual form, agreed upon for a unilateral act requiring acceptance, to which Article 1352 of the Civil Code applies by analogy: under this provision (which applies to contracts but is also applicable to unilateral acts), if the parties have agreed in writing to adopt a specific form to govern their relations, it is presumed that such form is intended for the validity of their declarations. If the agreed form is not complied with, the declarations (in this specific case: the declaration expressing the intention to terminate the contract) are deemed tamquam non essent, that is to say, as if they had not been made.